ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The South Carolina Department of Revenue (DOR) seeks to suspend a beer and wine permit for
45 days. G & J Company (G & J) opposes DOR's position and asserts that even though it admits
it violated the law by selling to an under-aged party, a 45 days suspension is too severe. G & J's
disagreement with DOR's determination places jurisdiction in the Administrative Law Court
(ALC). S.C. Code Ann. § 61-2-260 (Supp. 2004); S.C. Code Ann. Sec. 1-23-310 et. seq. (Rev.
1986 and Supp. 2004). Based upon the evidence and the argument presented by the parties, G &
J's permit is suspended for 15 days.
II. Issue
What is the appropriate penalty for G & J's violation of S.C. Code Ann. 61-4-580(1) (Supp.
2004) and S.C. Code Ann. Regs. 7-9(B) (Supp. 2004) for selling or allowing possession of beer
or wine to a person under 21 years of age?
III. Analysis
DOR asserts that a sale to an underage individual occurred, and that the sale was made
knowingly. DOR further argues that this is the third sale to an underage individual within two
years and thus warrants a sanction of a 45 day suspension.
G & J does not disagree with the assertion that a violation occurred. Rather, G & J argues that it
has undertaken measures to eliminate any future violations such that DOR's sanction request
should be denied or at least reduced.
A. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
G & J holds a beer and wine permit in use at G & J's location of 496 S. Church Street,
Spartanburg, South Carolina. On June 22, 2004, an undercover cooperating individual (UCI) in
the employment of SLED entered the location.
As of June 22, 2004, the UCI was 18 years old (date of birth March 5, 1986) and was not
disguised in any manner in an attempt to appear older. After entering the store, the UCI picked
up a beer from the store's cooler and brought the item to the counter. The employee at the
counter was an employee of G & J. The employee asked for identification and received a driver's
license from the UCI. The driver's license showed the UCI's correct name and birth date.
However, the employee returned the license to the UCI, took the UCI's money, and completed
the sale. The UCI left the store with the purchased beer.
After the purchase, an officer for SLED entered the store and explained that the employee had
just performed an illegal act by making a transfer of beer to a person under the age of twenty-one. A criminal citation was issued to the employee for illegally making the transfer.
Sales to other individuals under the age of twenty-one have occurred at this same location in the
past. Such sales were made on December 11, 2002 (fine paid of $400) and on May 6, 2004 (fine
paid of $1,000). Thus, the sale to the UCI on June 22, 2004 was the third violation within less
than two years.
G & J has taken some steps to eliminate sales to underage individuals. For example, it now has
undertaken further training of its employees to establish a greater awareness of the need for
checking age identification.
B. Conclusions of Law
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
1. Introduction
Any party operating under a beer and wine permit who knowingly sells beer or wine to a person
under twenty-one years of age creates a ground for a sanction of a monetary penalty or
suspension or revocation of the holder's permit. S.C. Code Ann. § 61-4-580(1) (Supp. 2004);
S.C. Code Ann. Regs. 7-9(B) (Supp. 2004). Here, G & J does not dispute the violation. Rather,
the issue is what penalty is proper.
2. Penalty Consideration
In the final analysis, a decision of what monetary fine, or suspension, or revocation, or some
combination, is to be imposed is one for the Administrative Law Judge as the fact-finder. Walker
v. South Carolina ABC Comm'n, 305 S.C. 209, 407 S.E.2d 633 (1991). Here, the instant
violation is the third in less than two years. Such repeated sales present a serious concern since
"a rule forbidding a licensee of the [DOR] to facilitate consumption of alcohol by a minor is
designed to protect both the minor who consumes the alcohol and those members of the public
likely to be harmed by the minor's consumption of that alcohol." Norton v. Opening Break of
Aiken, Inc.,313 S.C. 508, 443 S.E.2d 406, 408 - 409 (S.C.App. 1994). When repeated violations
of sales to persons under twenty-one occur in a period as short as two years, a significant
sanction is proper to foster protection of the public at large and minors in particular.
Accordingly, a 15 day suspension is imposed..
In this case a suspension and not a revocation is warranted. Here, management is concerned with
the illegal sales and has taken steps to remedy the problem. Its efforts seek to eliminate any
future occurrences. For example, additional training is now being provided to all employees,
which training is intended to prevent sales to underage customers.
Given the efforts to comply with the law and the need to rely upon the proper actions of
employees, a revocation is not proper at this point. However, should additional violations occur,
revocation may become the only viable option.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
A suspension of 15 days is imposed on the beer and wine permit held by G & J Company with
the suspension to begin at 12:01 a.m May 2, 2005.
AND IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
Dated: April 19, 2005
Laurens, South Carolina |